Citation: Regina v ED [2003] NSWCCA 255
Court: New South Wales Court of Criminal Appeal
Date: 11 September 2003
Judge(s): Spigelman CJ, Hidden J, Greg James J
Background
In June 1957, the applicant was convicted by a jury at Quarter Sessions of stealing a motor vehicle, specifically an MG roadster taken from a Sydney suburb in May 1956. He was sentenced to three years' imprisonment. The Crown case rested entirely on admissions the applicant was alleged to have made to two detectives at Paddington Police Station, placing him at the scene alongside two named accomplices.
The applicant lodged an appeal in 1957 but abandoned it. Nearly 46 years later, in April 2003, he filed fresh appeal documents, representing himself. He explained that recent public attention to police corruption and the fabrication of confessions prompted him to re-examine his past convictions. In the course of that review, he obtained access to a co-offender's court file and identified what he considered to be fresh evidence.
The applicant sought leave to appeal both conviction and sentence out of time. Leave was required not only because of the extraordinary delay but also because of the earlier abandonment of his 1957 appeal.
Legal Issues
- Whether leave to extend time to appeal against conviction should be granted approximately 46 years out of time
- Whether material found in a co-offender's court file constituted fresh evidence of sufficient cogency to warrant setting aside the conviction
- Whether the interests of justice required the Court to grant leave in circumstances where the sentence had long since been served
- Whether leave to appeal against sentence should be granted, given the disparity between the applicant's three-year term and the co-offender's five-year recognisance
Decision
The applicant's central argument on conviction was that a police report by Constable Waldron, who had stopped the stolen vehicle for speeding near Murwillumbah on the day after it went missing, contained no mention of passengers. The applicant contended that, since the vehicle was a two-seater, silence on passengers supported his claim that he was never in the car. The Court found this argument equivocal at best. The absence of any reference to passengers in a speeding report did not necessarily mean there were none, and one possibility was that Coote had temporarily dropped off his companions before the stop.
The Court also noted that the evidence could not be characterised as genuinely "fresh." A co-offender's further statement, which referred to being pulled over near Murwillumbah, was shown to the applicant at the time of his interview and was produced at trial. The applicant's trial solicitor, now deceased, would likely have been aware of that statement and could have investigated Constable Waldron's involvement. The Court observed that any inquiry into what the solicitor actually knew was no longer possible.
Even accepting the applicant's argument on fresh evidence at its highest, the Court found it could justify no more than a new trial. A new trial after 46 years was out of the question, given the deaths of key participants and the inevitable loss of recollection. The applicant had long since served his sentence. Applying the principles from R v Gregory, the Court held that the interests of justice, which encompass not only the applicant's position but also the interests of the Crown, the community, and the finality of judicial decisions, did not require leave to be granted.
On sentence, the Court declined to entertain the appeal. The applicant had already served the three-year term, rendering any review of the sentencing disparity futile. The material he provided about the co-offender's outcome was also insufficient to assess whether the disparity was justified.
Orders Made
- Application for leave to extend time to appeal against conviction: refused
- Application for leave to appeal against sentence: refused
Key Takeaways
- The interests of justice in an application to extend time do not focus solely on the applicant's grievance; they encompass the Crown's interests, community interests, and the strong public interest in the finality of judicial decisions.
- Proposed "fresh evidence" that is equivocal, incapable of being tested after decades, and arguably discoverable at the time of trial carries little weight in justifying a late extension of time.
- Where the only relief available if fresh evidence were accepted would be a new trial, and a fair new trial is no longer possible due to the passage of time and the deaths of witnesses, that consideration weighs heavily against granting leave.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that there is no utility in entertaining a sentence appeal once the applicant has fully served the term in question.
- A prior abandonment of an appeal is a procedural obstacle to a later extension of time application, though in this case the Court found it unnecessary to resolve that question separately, given the weight of the delay issue.
Legislation and Cases Referenced
Cases:
- R v Gregory [2002] NSWCCA 199